[Cite as Springfield Armory v. City of Columbus, 29 F.3d 250 (6th Cir. 1994)]
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit
Rule 24
ELECTRONIC CITATION: 1994 FED App. 0239P (6th Cir.)
File Name: 94a0239p.06
Nos. 92-4126/4223
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
Springfield Armory, Inc., et al., Plaintiffs-Appellants,
v.
City of Columbus, et al., Defendants-Appellees.
On Appeal from the United States District Court for the
Southern District of Ohio
__________________
Decided and Filed July 11, 1994
__________________
Before: MERRITT, Chief Judge; and NORRIS and SUHRHEINRICH,
Circuit Judges.
MERRITT, Chief Judge.
Two manufacturers, a dealer and two potential purchasers of
weapons challenge the constitutionality of a Columbus city
ordinance that bans assault weapons. The ordinance defines
"assault weapon" as any one of thirty-four specific rifles,
three specific shotguns and nine specific pistols, or "[o]ther
models by the same manufacturer with the same action design
that have slight modifications or enhancements. . . ." The
weapons are specified by brand name and model, not generically
or bydefined categories. Plaintiffs challenge the
ordinance as an unconstitutional bill of attainder because it
constrains only the named manufacturers while other
manufacturers are free to make and sell similar products.
Plaintiffs also contend that the ordinance is
unconstitutionally vague. No equal protection claim is
raised. The district court rejected the bill of attainder
claim on a motion for summary judgment. It did not address
the issue of facial validity but found it vague as applied to
two of the weapons in question. We find the ordinance
unconstitutionally vague on its face and therefore do not
reach the bill of attainder issue.
* * * * *
The Supreme Court has stated very general standards for
evaluating whether a statute is unconstitutionally
vague:
Vague laws offend several important values. First, because
we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly. Vague
laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to
be prevented, laws must provide explicit standards for
those who apply them. Grayned v. Rockford, 408 U.S. 104,
108 (1972)(footnotes omitted).
In addition, "[t]he requirement that government articulate its
aims with a reasonable degree of clarity ensures that state
power will be exercised only on behalf of policies reflecting
an authoritative choice among competing social values . . .
and permits meaningful judicial review," Roberts v. United
States Jaycees, 468 U.S. 609, 629 (1984), but the Court has
also said that a statute is void only if it is so vague that
"no standard of conduct is specified at all." Coates v.
Cincinnati, 402 U.S. 611, 614 (1971).
At times the Court has suggested that a statute that does
not run the risk of chilling constitutional freedoms is void
on its face only if it is impermissibly vague in all its
applications, Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 495 (1982), but at other times it has
suggested that a criminal statute may be facially invalid even
if it has some conceivable application. Kolender v. Lawson,
461 U.S. 352, 358-59 n.8 (1983); Colautti v. Franklin, 439
U.S. 379, 394-401 (1979). "The degree of vagueness that the
Constitution tolerates -- as well as the relative importance
of fair notice and fair enforcement - - depends in part on the
nature of the enactment." Hoffman Estates, 455 U.S. at 498.
When criminal penalties are at stake, as they are in the
present case, a relatively strict test is warranted. Id. at
499.
In the present case, the ordinance is fundamentally
irrational and impossible to apply consistently by the buying
public, the sportsman, the law enforcement officer, the
prosecutor or the judge. The Columbus ordinance outlaws
assault weapons only by outlawing certain brand names without
including within the prohibition similar assault weapons of
the same type, function or capability. The ordinance does not
achieve the stated goal of the local legislature -- to get
assault weapons off the street. The ordinance purports to ban
"assault weapons" but in fact it bans only an arbitrary and
ill-defined subset of these weapons without providing any
explanation for its selections. Many assault weapons remain
on the market and the consumer is without a reasoned basis for
determining which firearms are prohibited. The ordinance
permits the sale and possession of weapons which are virtually
identical to those listed if they are produced by a
manufacturer that is not listed. Thus, the Springfield SAR-48
is banned but equivalent designs sold by Browning Arms
Company, Paragon Sales and Armscorp are not. The Springfield
BM59 is banned but the equivalent Beretta BM59 and BM62 are
not banned. The Colt AR-15 Sporter is banned but not
identical weapons sold by Bushmaster, SGW/Olympic Arms, Pac
West Arms, Eagle Arms, Inc., Holmes Firearms, Frankford
Arsenal and Essential Arms Company. The Ruger Mini-14 rifle,
which shoots .223 caliber cartridges from a detachable box
magazine just like the Colt AR-15 Sporter, is not prohibited.
(App. 150, 153, 238)
The ordinance defines "assault weapon" simply by naming
forty-six individual models of rifles, shotguns and pistols,
listed by model name and manufacturer, and then adds within
the prohibition
other models by the same manufacturer with the same
action design that have slight modifications or
enhancements of firearms listed . . . provided the
caliber exceeds .22 rimfire. Columbus City Codes Sec.
2323.01(I).
No statement of purpose is added to the ordinance explaining
the reason for outlawing some but not all assault weapons of
the same type. Nor is there an explanation for drafting the
ordinance in terms of brand name rather than generic type or
category of weapon. Nor does the ordinance define "same
action design" or "slight modifications." We do not know
whether a "model by the same manufacturer" that fires twice as
fast or twice as many bullets, or half as fast with half as
many bullets, or some other combination of changes is a
"slight modification" of the "same action design."
Plaintiffs, gun manufacturers and dealers, say that they
are unable to comprehend the meaning of the "slight
modifications" provision or the purpose of the ordinance and
hence cannot know in advance which sales the ordinance
purports to prohibit. They argue that the ordinance does not
adequately notify the citizenry regarding what conduct is
prohibited and will necessarily give rise to arbitrary
enforcement. The only clear restriction on the range of
modifications which may be considered slight is that the
caliber of a modified weapon must exceed .22. Does this mean
that any other change in caliber is necessarily slight? What
about the range of fire and the magazine capacity of a weapon?
Is a doubling, tripling or halving of these measurements a
slight modification? Because there is no discernable purpose
underlying the slight modifications requirement, the reach of
the provision defies definition.
How is the ordinary consumer to determine which changes may
be considered slight? A weapon's accuracy, magazine capacity,
velocity, size and shape and the caliber of ammunition it
takes can all be altered. For example, the Colt Sporter
Lightweight is a 5.56mm caliber weapon equipped with a 16 inch
barrel, a 5-round magazine capacity, a 14.5 inch sight radius
and weighs 6.7 lbs. (App. 266) If Colt modifies this weapon
so that it takes a 9mm cartridge, has a 20 inch barrel, a 20-
round magazine capacity, a 19.75 inch sight radius and weighs
10 lbs., would this new weapon be a slight modification? Or
if these changes increase the weapon's range and accuracy so
that it can shoot at twice the distance, or if a new trigger
pull allows the operator to shoot twice as fast, or if Colt
doubles the caliber of ammunition but halves the velocity at
which the weapon fires the bullet, or if it modifies the gun
so that it cannot accept a magazine capacity over 5 rounds?
Suppose Colt changes so many of the external features of the
weapon -- adding a bipod, changing the pistol grip, the stock
material, the color, the length and weight -- that a person of
ordinary intelligence would not, by merely looking at the
weapon, be able to recognize any relationship between this
modification and the original weapon. Would these changes be
considered slight? We see no reasoned basis for making a
determination one way or the other.
Even if the term "slight" did not render this provision
void, the ordinance's "modifications" requirement would. In
order for a difference to constitute a "modification" the
weapon in question must have been developed from one of the
listed firearms. A copy- cat weapon is only outlawed if it is
developed from a listed weapon by a listed manufacturer. As
the district court recognized, ordinary consumers cannot be
expected to know the developmental history of a particular
weapon:
Neither the M1 nor the M1A were developed from the BM59.
Hence, neither . . . could be said to represent firearms
with "slight modifications or enhancements of the firearms
listed," in this instance, the Springfield BM59. . . .
The actions of these firearms are in many respects
identical. Nevertheless, persons of ordinary
intelligence would not know whether the subject ordinance
bans the M1 or M1A. Only a person with knowledge of the
history of these firearms would know that the M1 and M1A
are not covered by the ordinance. (App. 75).
Nothing in the ordinance provides sufficient information to
enable a person of average intelligence to determine whether
a weapon they wish to purchase has a design history of the
sort which would bring it within this ordinance's coverage.
See Robertson v. Denver, No. 93SA91, 1994 WL 160556, at *7-8
(Colo. Supreme Court, May 2, 1994)(holding similar provision
invalid because "ascertaining the design history and action
design of a pistol is not something that can be expected of a
person of common intelligence.") The record indicates that
the average gun owner knows very little about how his gun
operates or its design features.
These vagueness problems are not difficult to remedy. The
subject matter does allow for more exactness. It is not a
case in which greater specificity would interfere with
practical administration. See Kolender, 461 U.S. at 361. To
the contrary, Columbus has many options for effectively
pursuing its stated goals without running afoul of due
process. Other gun control laws which seek to outlaw assault
weapons provide a general definition of the type of weapon
banned, and the Columbus city council can do the same. See,
e.g., Cleveland Ordinance No. 415- 89 Sec. 628.02 (banning
semi- automatic rifles and pistols that accept a detachable
magazine with capacity of 20 rounds or more and semi-automatic
shotguns with a magazine capacity of more than 6 rounds); H.R.
4296 103rd Cong., 2nd Sess., Sec. 2 (1994)(banning
semi-automatic rifles, pistols and shotguns that can accept
magazines of more than five rounds and that have at least two
of a number of listed features).
Thus we conclude that the ordinance at issue is invalid on
its face. The district court erred in failing to consider the
facial validity of this ordinance and instead examined only
the question of whether the ordinance was vague as applied to
a number of specific weapons. In order to restrict its
inquiry, the court relied on the Supreme Court's statement
that "vagueness challenges to statutes which do not involve
First Amendment freedoms must be examined in the light of the
facts of the case at hand," United States v. Mazurie, 419 U.S.
544, 550 (1975). Nothing in Mazurie indicates that a facial
challenge cannot succeed simply because constitutionally-
protected activity is not imperiled. To the contrary, the
Supreme Court has expressly stated that the question of
whether or not a statute impinges on constitutionally-
protected activity is but the first inquiry in a court's
examination of a statute challenged on vagueness grounds.
Hoffman Estates, 455 U.S. at 494. A court must also inquire
whether the law has any valid application. Id. at 494-95.
The district court never considered the question of whether or
not a person of ordinary intelligence could make sense of this
provision. Instead, it requested that plaintiffs produce the
"other firearms" which they believed might be covered and
evaluated the ordinance as applied to those weapons. After
conducting an evidentiary hearing, the court found the
ordinance void as applied to certain firearms and valid as
applied to others, with no consideration of plaintiff's facial
challenge. This was an erroneous way to approach the
vagueness problem in this case.
The final issue is the question of severability. The
legislation does not include a severability clause. We have
no way to know whether the local legislature would have
enacted the assault weapons ban without the "slight
modifications" provision. 2 Sutherland, Statutory
Construction, Sec. 44.03 (5th ed. 1992); Williams v. Standard
Oil Co. of Louisiana, 278 U.S. 235, 241-44 (1929); City of New
Haven, Connecticut v. U.S., 634 F. Supp. 1449, 1453-59 (D.D.C.
1986). Apparently the city council simply copied the
ordinance from a California ordinance. Here, the catch-all
phrase is the only element that brings any generality to the
measure. The provision seems integral to the ordinance since
without it manufacturers could circumvent the ban by merely
changing the names of the listed weapons. In view of the
arbitrary nature of the ordinance and the historical
presumption of inseverability in the absence of a severability
clause, we conclude that we should not try to save the assault
weapon portion of the ordinance but rather that we should
leave it to the local legislature to draft another ordinance
that does not suffer from the same defects as this one. 2
Sutherland, Statutory Construction, Sec. 44.08, 44.09 (5th ed.
1992); Standard Oil, 278 U.S. 235 (1929); Carter v. Carter
Coal Co., 298 U.S. 238 (1936). Thus we hold the assault
weapon provisions of the ordinance (Sec. 1 and 2 of Ordinance
No. 1226-89) invalid. The remaining provisions relating to
large capacity magazines, weapons transactions and explosive
devices remain unaffected by our decision. Accordingly the
judgment of the district court is reversed.